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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Reginald WATSON, Defendant-Appellant.

Decided: February 05, 1998

Before MILONAS, J.P., and ROSENBERGER, ELLERIN and TOM, JJ. Maura E. Daly, for Respondent. James L. Hubbert, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Daniel FitzGerald, J.), rendered April 14, 1994, convicting defendant, after a jury trial, of criminal possession of a weapon in the second and third degrees, and sentencing him, as a second violent felony offender, to concurrent terms to 6 to 12 years and 3 to 6 years, respectively, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the conviction for criminal possession of a weapon in the third degree and dismissing that count of the indictment, and otherwise affirmed.

We find that the jury's credibility determinations are supported by the record and that the verdict was not against the weight of the evidence (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 Delivery of an adverse inference charge regarding a destroyed audiotape of a police radio transmission was an appropriate sanction since the People were not aware of the existence of the tape until the time of trial and the possibility of prejudice to defendant was remote (People v. Martinez, 71 N.Y.2d 937, 528 N.Y.S.2d 813, 524 N.E.2d 134).

 The existing record, which defendant has not sought to amplify by way of a CPL article 440 motion, fails to support defendant's claim of ineffective assistance of counsel (see, People v. Rivera, 71 N.Y.2d 705, 530 N.Y.S.2d 52, 525 N.E.2d 698;  People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).

 Since both weapon possession charges involved the same weapon, in the interest of justice, we dismiss the count of criminal possession of a weapon in the third degree (People v. Wade, 221 A.D.2d 276, 634 N.Y.S.2d 92, lv. denied 87 N.Y.2d 926, 641 N.Y.S.2d 608, 664 N.E.2d 519).

We perceive no abuse of discretion in sentencing.

Defendant's remaining contentions are unpreserved and without merit.


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